December 16, 2005

To:      Tom Shore, Ferron District Ranger
           Mesia Nyman, Price District Ranger
           Alice Carlton, Forest Supervisor, Manti-La Sal National
cc:       Michael Davis, Environmental Coordinator
           Jack Troyer, Regional Forester, Region 4
From:  Mary O'Brien
           Kevin Mueller, Utah Environmental Congress
           Veronica Egan, Great Old Broads for Wilderness
           John Carter, Western Watersheds
           Jim Catlin, Wild Utah Project
Re:      Appeal Resolution process for FEIS and ROD, Wasatch Plateau 31-Allotment Term Grazing Permits

Regarding our appeal of the Final EIS for term grazing permits for 31 sheep allotments on the Wasatch Plateau, we wish to summarize that we had three appeal resolution phone conferences and the following process:

November 23, 2005 conference call

We jointly discussed outlines of a proposed resolution agreement, and the Forest urged us to submit a proposed resolution agreement in writing by Tuesday, November 29.

That proposed resolution, submitted Tuesday, November 29, was as follows:

PROPOSED RESOLUTION AGREEMENT

WITHIN TEN YEARS

• NEPA-BASED AMPs for all allotments within the next ten years

(Note: By the end of ten years, the current allotment management plants will be 24-42 years old if not revised. Their monitoring elements, for instance, are not being followed and are terribly outdated)

WITHIN THREE YEARS

• Collaboratively select and complete an AMP revision (documented within NEPA) within three years for five sheep allotments within the 31-allotments area.
• Each AMP will emphasize, as relevant for the allotments
• bare soil
• native forbs
• natural springs
• aspen regeneration
• meadow native grasses and forbs
• sagebrush native understory
• monitoring methods and locations
• Upon completion of the five AMPs, review by what means and schedule the remaining 26 allotments would be analyzed during the following seven years.

• The Appellants would retain the ability to litigate after three years if:
• The AMPs for the five allotments were not revised collaboratively.
• A process and schedule has not been established for applying what has been learned in the five allotments to AMP revisions of the other 26 allotments.

WITHIN FIVE YEARS

• ASPEN
• Collaboratively map aspen regeneration within the 31 sheep allotments. [Note: "The extent of aspen regeneration in the analysis area has not been mapped" (FEIS 2-7).

• BARE SOIL
• Collaboratively determine whether the % allowable soil disturbance is being met on a statistically valid sample of the 31 allotments (See FEIS, page S-ii for soil disturbance criteria by slope; and 3-21 for regional guidelines by allotments area)

• NATIVE FORBS
• Collaboratively establish a plan for recording native forbs and grasses in Manti-La Sal NF monitoring
• Establish reference areas within the Forest, perhaps using Cedar Breaks or other relevant locations as temporary reference areas. Priority for first four reference areas:
• Aspen
• Sagebrush
• Meadow
• Spring

• AMPHIBIANS

1. Collaboratively develop an amphibian monitoring protocol that can be used by both Forest Service and citizen monitors
2. Collaboratively survey a subset of wetland areas within the 31 allotments for Western toad

• SPRINGS

1. Collaboratively develop and implement a survey schedule that will sample springs within the sheep allotments
2. At the end of the survey, establish a springs conservation plan within the allotments area that will provide for conservation of natural conditions at a subset of springs

• MIGRATORY BIRDS

1. Collaboratively develop a monitoring plan for

• Brewer's sparrows habitat and populations
• Broad-tailed hummingbird habitat and populations

November 30 conference call

The Forest indicated interest in agreeing to a modified version of our proposal. The Forest indicated that by Friday, December 2, the Forest would send us a written version of their proposal. Verbally on the phone conference, we understood the Forest to be offering the following:

"WITHIN TEN YEARS"

• AMPs would not be developed under NEPA. (It was not clear whether the Forest was interested in agreeing to revise all the AMPs within the next ten years without NEPA).

"WITHIN THREE YEARS"

• Items 1 and 2 would be pursued in three rather than five allotments
• Item 3(a) would be pursued in three allotments and item 3(b), the establishment of reference areas, would be pursued for the Manti portion of the Manti-La Sal NF
• Items 4 and 5 would be pursued within three allotments
• If money were found to be available within the wildlife department, Item 6 would be pursued. It wasn't clear whether this monitoring would take place in three allotments, or at relevant locations applicable to all 31 allotments.

The Forest did not submit a written counter-proposal on Friday, Dec. 2, but indicated they would instead do so by Monday, December 5. At 7 p.m. on Monday, December 5, Michael Davis sent an email stating:

Tom Shore and Mesia have been pondering the conference call on Wednesday. In retrospect, they regret to say that they are unable to commit to the actions that they outlined for you. Among many things considered they are concerned about our long term ability, due to fiscal concerns, to follow through with the actions discussed.

Michael did not indicate what "many things considered" other than fiscal concerns were involved in the decision to commit to actions outlined during the November 30 conference call.

Michael also wrote:

If`you would still like to pursue the resolution of this appeal, please let us know. We can use the conference call already set up for Thursday, Dec 8 th or set up a new call time.

We indicated our interest in learning on December 8 th what the Forest would be proposing as a resolution if they were not interested in pursuing any of our proposed resolution.

December 8, 2005 phone conference

The Forest indicated it believes it is meeting its 1986 Forest Plan requirements and did not put anything on the table in the interest of resolving the appeal. The Forest indicated that it would not offer any monitoring beyond what was required in the 1986 Plan. The Forest also said that elements for collaborative monitoring that had been offered by the Forest on November 30, 2005 in the interest of us withdrawing our appeal are no longer an option. The Forest indicated that other elements of our proposal (e.g., identification of reference areas) were said by a Responsible Official to involve changing management and changing management was said by the Responsible Official to not be an option for resolving appeals..

The Forest indicated that it sees no future point in time when any NEPA would be done on any of the 31 AMPs (which are now 14-24 years old) and that NEPA may never again be done on these 31 Term Grazing Permits. Further, the Forest staff said they are using the newer NFMA planning direction that says "projects and activities must be consistent with the applicable plan." This confused us because we didn't know that the FEIS is using the new regulations, but part 219.8 does say that. If you could clarify this for us, that would be helpful.

The Forest indicated that our appeal proposal regarding aspen, reference areas, amphibians, bare soil, and distinctions between exotic and native forbs and grasses is reasonable, but outside the appeal process. The Forest indicated it would be willing to collaboratively pursue these items with Appellants and permittees outside the appeal process, but agreeing to pursue this in the interest of appeal resolution and us withdrawing the appeal was no longer an option.

With regard to specific elements of Appellants' resolution proposal, the Forest staff indicated they "can't go back and reanalyze" the Sustainable Multiple Use Alternative, because they "don't have the resources to do this." The Forest did indicate that it was a "valid point" that prior to analyzing the Sustainable Multiple Use Alternative for the first time in the Final EIS they could have phoned to see if the Three Forests Coalition had intended for all grazing to be eliminated on 76% of the allotment area (i.e., all habitat used by mule deer in the summer) due to the Sustainable Multiple Use proposal that "key" mule deer fawning areas be unsuitable for sheep grazing.

With regard to amphibians, the Forest indicated it would rely solely on UDWR surveys (which do not analyze the riparian vegetative condition of the habitat in which boreal toads are or are not found). The Forest staff indicated they "don't know how to use" the UDWR data (e.g., absence of boreal toads within what should otherwise be suitable habitat throughout the 31 allotments) for decisions on grazing management, even though the reason that boreal toads are absent may be related to sheep grazing (as was indicated in scientific evidence submitted during scoping by the Appellants).

Although Brewer's sparrow and broad-tailed hummingbirds are migratory birds of priority concern to the Forest, they could be affected by sheep grazing (i.e., removal of dense sagebrush and sheep consumption of forbs, respectively), the Forest indicated it had "no ideas" about monitoring for these migratory birds. The biologists have a full plate monitoring only the goshawk.

Regarding lack of macroinvertebrate monitoring in relation to grazing in the 31 allotments, the Forest indicated they are not required to monitor macroinvertebrates in relation to management actions, though macroinvertebrates are a "management indicator" species for the Forest. The Forest indicated that they "monitor according to the Forest Plan, not at a project-specific level."

With regard to the FEIS' blurring of exotic and native species when reporting on "upward trend," the Forest indicated that outside of the appeal process they "could break out our inventories that way" [i.e., identifying presence and trend of exotic versus native species].

Summary

In conclusion, as the Manti-La Sal NF could not identify anything to offer, and has decided to withdraw consideration of collaborative monitoring of any natural resource conditions (already in the Forest Plan or otherwise) on any of the 31 allotments in exchange for us withdrawing our appeal, it appears that the resolution process could not proceed.

We appreciate that the Forest has agreed to work collaboratively with us to examine aspen regeneration, bare soil, amphibians, Brewer's sparrow, and broad-tailed hummingbird in relation to sheep grazing, as well as identification of reference areas, and to pursue analysis of exotic vs. native plant species when describing condition of livestock allotments.

Please let us know if we have misrepresented anything from the December 8, 2005 or other appeal resolution phone conferences. Please clarify for us those points we indicate confusion on.

For questions or response, please contact Appellants by their email or Mary O'Brien by phone: At 435.259-6205 until December 20; at 541.485-6886 after December 20.

This is confusing to us, as the 1986 LRMP for Manti-La Sal NF writes, in relation to macroinvertebrates, "These habitats [i.e., stream fisheries, lakes, reservoirs, tunnels and canals] can be monitored for macroinvertebrates on a priority basis as needed to determine the specific effects of any one protect or activity, a well as the effects of general Forest land management, on the aquatic resources. The number and variety of macroinvertebrates found express the quality and quantity of the aquatic habitat. Changes in aquatic habitats, resulting from activities in the terrestrial habitat, are rapidly seen through changes n the species composition and biomass of macroinvertebrates." (II-34, Emphases added). The monitoring program in chapter IV of the plan also prescribes macroinvertebrates MIS monitoring "For baseline stations or as needed for select project activities."